Replacing Blurred Lines with Bright Lines: California’s Senate Bill 967

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Editor’s Note: The Campbell Law Observer recently held its write-on competition for the Fall 2014 semester. Students were given the option of choosing a topic of their own, like this author, or a suggested topic. This article was awarded the highest overall score by our editorial staff.

In recent months, universities across the nation have received harsh media attention for their policies for dealing with sexual assault amongst students.  In the midst of this negative attention, California has received praise for taking steps toward becoming the first state to require its state-funded universities to have a “yes means yes” standard of consent for sexual assault in order to receive funds for financial aid.  While a more concrete definition of consent may be in order, a standard as high as affirmative consent could prove unfair to the accused, leaving them with an impossibly high burden of proof.

Supporters of the Bill purport that requiring an affirmative consent standard is a preventative measure because it helps make clear what kind of behavior each person finds acceptable when engaging in sexual activity.

Senate Bill 967 (“the Bill”) would require that universities in California adopt an affirmative consent standard in determining whether consent was given by the complainant in cases of alleged sexual assault if they wish to receive state funds to provide financial aid to students.  The Bill, which was presented to Governor Jerry Brown on September 2, 2014, defines “affirmative consent” as:

Affirmative, conscious, and voluntary agreement to engage in sexual activity. . . It is the responsibility of each person involved in the sexual activity to ensure that he or she has the affirmative consent of the other or others to engage in the sexual activity. Lack of protest or resistance does not mean consent, nor does silence mean consent.

The Bill specifies that affirmative consent, once given, can be taken away at any time and that a past sexual relationship is not an indicator of future consent to sexual acts.  It further states that it is not a valid excuse if the accused believed he or she had affirmative consent from his or her partner if the accused knew or had reason to believe that his or her partner was asleep or unconscious, incapacitated (meaning under the influence of drugs, alcohol, or medication) to the point that his or her partner was unable to understand the extent of the sexual activity, or unable to communicate due to a mental or physical condition.  Supporters of the Bill purport that requiring an affirmative consent standard is a preventative measure because it helps make clear what kind of behavior each person finds acceptable when engaging in sexual activity.

However, opponents worry that affirmative consent is impractical to prove and allows universities to meddle in the sex lives of its students.  According to the LA Times Editorial Board, “[i]t seems extremely difficult and extraordinarily intrusive to micromanage sex so closely as to tell young people what steps they must take in the privacy of their own dorm rooms.”  Samantha Harris of the Foundation for Individual Rights in Education (FIRE) points out that in most cases it would be nearly impossible for the accused to prove he or she gained affirmative consent for sexual activity with the alleged victim, and maintained that affirmative consent throughout.

Opponents of the Bill say the shifting of the burden of proof from the victim to the accused to prove his or her innocence is a violation of due process rights.

Opponents of the Bill are concerned with other issues that may arise from requiring affirmative consent.  Many critics say that the Bill will require universities to implement other policies that violate the due process rights of the accused.

The Bill would require all state-funded schools to implement policies that address the following (for a comprehensive list, see Senate Bill 967):

• Policy statements describing how the school will deal with protecting the privacy of the individuals involved
• Developing a victim interview protocol
• Contacting and interviewing the accused
• Notifying the victim of on- and off-campus resources, and helping with coordination with law enforcement
• Participation of victim advocates and other supporting people
• A training program for campus officials involved in investigating sexual assault
• Procedures for confidential reporting by victims and third parties

One of the most controversial parts of the Bill is that it would require all state-funded schools to implement a policy in which “the standard used in determining whether the elements of the complaint against the accused have been demonstrated is the preponderance of the evidence.”  Opponents of the Bill say the shifting of the burden of proof from the victim to the accused to prove his or her innocence is a violation of due process rights.

“If this bill passes as written,” Harris said, “accused students would bear the impossible burden of demonstrating that they repeatedly acquired unambiguous affirmative consent, and that question would be determined by fact-finders deciding simply which side they believe more by the most razor-thin of margins.”

Supporters of the Bill argue that shifting the burden of proof can help rebut problematic underlying assumptions that victims of sexual assault are lying or exaggerating.  Further, these policies can help to make campus disciplinary proceedings less traumatic for victims of sexual assault.  Lisa Maatz, Vice President of Government relations at the American Association of University Women, claims that these policies ensure that victims are not asked victim-shaming questions such as “What were you wearing?”

Other universities have taken the initiative to require an affirmative consent standard in their sexual assault policies without legislative action as well.

Many people are critical of Senate Bill 967 because it would be the first piece of legislation to require universities to employ these types of policies in order to receive state funds for providing financial aid.  However, California’s affirmative consent standard is not novel or unheard of in other university policies across the nation.  Rather, many schools are voluntarily implementing these standards.

Regardless of whether Senate Bill 967 becomes law, the University of California’s existing Sexual Harassment and Sexual Violence policy is already strikingly similar to the proposed policy in the Bill.  All ten of the University of California’s campuses currently define consent as “an affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.”  The policy also states that a current or previous sexual relationship is not evidence of consent and that a person cannot consent if they are intoxicated.  University of California President Janet Napolitano has even expressed her support of the Bill.

Other universities have taken the initiative to require an affirmative consent standard in their sexual assault policies without legislative action as well.  According to the National Center for Higher Education Risk Management, at least 800 colleges include in their policies a definition of consent similar to or the same as affirmative consent.

The University of North Carolina – Chapel Hill recently adopted policy similar to the one proposed by Senate Bill 967.  In its Policy on Prohibited Discrimination, Harassment and Related Misconduct, the University defined consent as “the communication of an affirmative, conscious and freely-made decision by each participant to engage in agreed upon forms of sexual contact . . . [it] requires an outward demonstration, through understandable words or actions, that conveys a clear willingness to engage in sexual contact.”

Although affirmative consent policies can help in providing a clear-cut definition of consent, some universities may find that the burden this standard places on the accused is too high.  Sweeping legislation that requires all universities in a particular state to adopt such a strict definition of consent may pose legal questions, such as violations of due process rights, which are not likely to be left uncontested.